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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`ORACLE CORPORATION,
`NETAPP INC. and
`HUAWEI TECHNOLOGIES CO., LTD
`Petitioners
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`v.
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`CROSSROADS SYSTEMS, INC.
`Patent Owner
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`____________
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`Case IPR2014-01209
`Patent 7,051,147
`____________
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`PATENT OWNER’S MOTION TO SEAL
`EXHIBITS 2044, 2045, 2050, 2052
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`Patent Owner Crossroads Systems, Inc. requests that its confidential
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`commercial information be sealed pursuant to 37 C.F.R. §§ 42.14 and 42.54(A).
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`Patent Owner requests the Board enter the default protective order set forth in
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`Appendix B of the Office Trial Practice Guide, which is filed concurrently with this
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`motion. Patent Owner has conferred in good faith with Petitioners, and Petitioners
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`do not oppose entry of the default protective order.1 The proposed protective order
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`is attached as Exhibit A hereto. Pursuant to Appendix B of the Trial Practice Guide,
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`the terms of the order take effect upon the filing of this motion. 77 Fed. Reg. 48756,
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`48770 (August 14, 2012).
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`Confidential information is protected from disclosure. 35 U.S.C. § 316(a)(7)
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`The Trial Practice Guide provides:
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`The rules aim to strike a balance between the public’s interest in
`maintaining a complete and understandable file history and the parties’
`interest in protecting truly sensitive information. . . . The rules identify
`confidential information in a manner consistent with Federal Rule of
`Civil Procedure 26(c)(1)(G), which provides for protective orders for
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` 1
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` Petitioners do not oppose entry of the default protective order or Patent Owner’s
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`Motion to Seal, but reserve the right to file an opposition after reviewing the
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`evidence in question.
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`1
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`trade secret or other confidential research, development, or commercial
`information.
`77 Fed. Reg. 48756, 48760 (Aug. 14, 2012). The standard for granting a motion to
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`seal is good cause. 37 C.F.R. §42.54(a).
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`I.
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`to License Agreements Containing
`Information Relating
`Confidentiality Provisions.
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`The first category of information Patent Owner requests to be sealed consists
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`of (1) license agreements whose terms contain confidential commercial information
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`and contain express confidentiality provisions (Ex. 2052); and (2) a table (Ex. 2050)
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`containing the identity of Crossroads’ licensees and the overall licensing revenue
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`earned from the licenses. (Ex. 2052). Exhibits 2050 and 2052 contain confidential
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`terms relating to agreements to license the patent at issue in this proceeding (and/or
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`patents from the same family), including confidential licensee identification
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`information, royalty rates, and payment terms. This information constitutes
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`confidential information that should be protected from disclosure. In addition,
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`although the terms of the licenses vary, generally they provide by their own terms
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`that the terms of the licenses are confidential, and are only to be disclosed pursuant
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`to a protective order and only as required by law. That such information is
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`confidential and an appropriate subject of a motion to seal is generally non-
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`controversial. See, e.g., Ex. 2052 at CRDS204600-601. HBPSI – Hong Kong, Ltd.
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`v. SRAM, LLC, IPR2013-00174, Paper 19 at 1 (PTAB June 11, 2013) (granting leave
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`2
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`to file confidential “Settlement and License Agreement” under seal). Patent Owner’s
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`commercial information, including its license agreements and information contained
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`therein, is properly considered confidential and Patent Owner has exhibited good
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`cause for filing Exhibits 2050 and 2052 under seal.
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`Moreover, confidential customer names are considered confidential. See, e.g.,
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`Schott Gemtron Corp. v. SSW Holding Co., Inc., IPR2013-00358, Paper 76 at 4
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`(PTAB May 16, 2014). The identity of a licensee contained in a confidential license
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`agreement is tantamount to the identity of a confidential customer and should
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`similarly be treated as confidential.
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`Restricting access to the very specific information in Exhibits 2050 and 2052
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`will cause little to no harm to the public. Patent Owner’s publically available
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`response contains sufficient detailed information to allow the public to access “a
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`complete and understandable file history of this inter partes review.” Garmin Int’l
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`v. Cuozzo Speed Techs., LLC, IPR2012-00001, Paper 37 at 4 (PTAB Apr. 5, 2013).
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`For example, in Patent Owner’s Response it states “a large number of licensees have
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`taken licenses directed specifically to Crossroads’ ’972 patent family. Ex. 2050. The
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`total license payments through FY2014 are over $60 million.” Response at 50. The
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`public has, therefore, been apprised of the overall amount of license payments and
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`specific information regarding the precise license payments from each licensee is
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`unnecessary to provide an understanding of the Patent Owner’s argument. Patent
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`3
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`Owner further explains in its public filing that it has licensed to certain interested
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`parties without the need for a lawsuit. Id. This detailed, but non-precise, information
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`appropriately balances the rights of the public with the Patent Owner’s right to keep
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`its sensitive commercial information confidential.
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`2. Confidential Sales Information
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`Patent Owner also requests that certain sales information listing the quantity
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`shipped and revenue received for certain products sold over a multi-year period (Exs.
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`2044, 2045) be sealed. This information is commercially sensitive and could be used
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`by Patent Owner’s competitors to Patent Owner’s detriment. Patent Owner’s
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`confidential business information, including sales information, is properly
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`considered confidential. See, e.g., Smith & Nephew, Inc. v. Convatec Technologies,
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`Inc., IPR2013-00097, Paper 89 at 2-3 (PTAB May 19, 2014). Crossroads’ sales
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`figures could also be used by competitors to unfairly compete against Crossroads for
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`potential customers by undercutting Crossroads’ pricing, or by contrasting
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`Crossroads’ sales figures with their own in an attempt to persuade customers to buy
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`their products instead of Crossroads.
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`Again, Patent Owner’s Response provides sufficient general information
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`about this highly sensitive business information such that lacking knowledge of the
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`precise information contained in Exhibits 2044 and 2045 would not inhibit the
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`public’s understanding of the Patent Owner’s arguments and positions. Gnosis
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`4
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`S.p.A., Gnosis Bioresearch S.A., & Gnosis U.S.A., Inc. v. S. Ala. Med. Sci. Found.,
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`IPR2013-00118, Paper 33 at 2 (PTAB Oct. 31, 2013). For example, Patent Owner’s
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`Response provides “Ex. 2044 shows that Crossroads’ sales of its first bridge
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`products (without access controls, e.g., 4100, 4200 models) were initially quite high,
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`but after the introduction of access controls, the superiority of the routers was
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`quickly perceived by the market.” Response at 49. Further, Patent Owner stated
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`“[t]he decline in Crossroads’ sales from 2000 through 2010, evident in Ex. 2044, is
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`the result, at least in part, of patent infringement.” Id. Once again, the information
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`provided to the public is sufficient to provide an understanding of the substance of
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`Patent Owner’s arguments.
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`Patent Owner seeks only suppression of specific information and has
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`attempted to narrowly tailor its requests. Patent Owner requests sealing of Exhibits
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`2044, 2045, 2050 and 2052 as requested in this Motion. If the Board ultimately
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`disagrees regarding the scope of Patent Owner’s requests, Patent Owner respectfully
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`requests an opportunity to further redact, modify, or withdraw the exhibit or exhibits
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`in questions before any information in the exhibits is made public.
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`Respectfully submitted,
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`/James H. Hall/
`James H. Hall
`Registration No. 66,317
`Counsel for Patent Owner
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`Dated: May 26, 2015
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`6
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`CERTIFICATE OF SERVICE
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`The undersigned certifies service of Patent Owner’s Motion to Seal Exhibits
`2044, 2045, 2050, 2052 and accompanying proposed protective order on May 26,
`2015 on counsel for Petitioners by e-mail pursuant to agreement at the following
`addresses:
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`Greg Gardella
`cpdocketgardella@oblon.com
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`Scott McKeown
`cpdocketmckeown@oblon.com
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`Oblon
`1940 Duke Street
`Alexandria, VA 22314
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`By:
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` /James H. Hall /
`James H. Hall
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